Keeney v. Williams

• Decision Date: 03 September 2020
• Docket Number: No. 07-19-00374-CV,07-19-00374-CV
• Parties: MISTY KEENEY AND MONTY KEENEY D/B/A SHOOTIN' HOOPS GUMBALLS, APPELLANTS v. JOHN WILLIAMS AND CAROLYN WILLIAMS, APPELLEES
• Court: Texas Court of Appeals

MISTY KEENEY AND MONTY KEENEY D/B/A
SHOOTIN' HOOPS GUMBALLS, APPELLANTS
v.
JOHN WILLIAMS AND CAROLYN WILLIAMS, APPELLEES

No. 07-19-00374-CV

Court of Appeals Seventh District of Texas at Amarillo

September 3, 2020

On Appeal from the County Court at Law Number 1 Tom Green County, Texas
Trial Court No. 18C161-L; Honorable Ben Nolen, Presiding

MEMORANDUM OPINION

Before QUINN, C.J., and PIRTLE and DOSS, JJ.

Appellants, Misty Keeney and Monty Keeney, d/b/a Shootin' Hoops Gumballs, appeal an adverse jury verdict in favor of Appellees, John Williams and Carolyn Williams, in this litigation concerning the ownership of thirty-two gumball machines.¹ The jury found

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the gumball machines at issue were owned by the Williamses, but converted by the Keeneys, resulting in a damage award in favor of the Williamses in the amount of $55,000. The Keeneys challenge the jury's verdict through five appellate issues. We affirm.

BACKGROUND

This dispute arose after the death of Phil Cole. Phil owned a gumball machine business for many years. His business consisted of four to five hundred gumball machines in three states. As part of his business, Phil contracted with various people to service the machines in different locations. One of those people was Carolyn Williams, a first cousin of Phil's wife, Sandra Cole. For thirteen years, Phil and Carolyn enjoyed a working relationship in which Carolyn serviced Phil's gumball machines in Waco and the surrounding area. According to Carolyn, she and Phil were "partners" and she was responsible for one-half of the payment on the machines in that area, as well as being obligated to pay one-half of any losses.

Carolyn testified that in 2016, she and Phil entered into an oral agreement through which she purchased Phil's one-half interest in their partnership for a total of $3,500. In September 2016, Carolyn had a cash payment of $1,200, in an envelope labeled "Final Payment," delivered to Phil. This, she said, completed her purchase of the thirty-two gumball machines in question. No written agreement exists regarding the "partnership" between Carolyn and Phil or their agreement for her to purchase his one-half interest.

In 2017, Phil passed away. At that time, his gumball machine business passed to his heirs. The heirs decided to allow one of the sibling-heirs, Misty Keeney, to purchase the business in its entirety for a purchase price of $90,000. The family executed a bill of

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sale and purchase agreement that says, in part, "Whereas purchaser [Misty Keeney] desires to purchase and sellers desire to convey to purchaser all of the gumball business of Phillip Eugene Cole, deceased." It is this language the Keeneys say led to their belief they owned the disputed gumball machines.

Sometime later, Misty called Carolyn because Carolyn's phone number was found in a gumball machine that Misty had serviced. Carolyn told Misty that her number was in all of the gumball machines she owned in the Waco area. At that point, Misty told Carolyn she and her husband, Monty, had serviced some of those machines, meaning they had removed money from them and that they owed money to Carolyn. Not long after that call, Misty contacted Carolyn again and requested a list of the machines Carolyn claimed to own. Carolyn complied and sent an email providing the addresses of forty-nine gumball machines.² Carolyn's list was admitted into evidence. Misty and Monty then went to each machine, changed the locks, removed the money, and put a sticker with their contact information on the exterior of the machines.

By letter dated April 10, 2017, Misty and Monty, through their counsel, demanded that Carolyn repay funds she collected from the gumball machines from September 2016 through the present time. They also informed her that her services were no longer needed. In response, the Williamses hired their own attorney and through a letter dated April 17, 2017, informed the Keeneys of Carolyn's claim to the disputed gumball

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machines. The Keeneys refused to acknowledge Carolyn's claim of ownership and refused to account to her for revenues received from the disputed gumball machines.

The dispute was not resolved and, in August 2017, the Williamses filed suit against the Keeneys seeking recovery of damages arising from these events. In June 2019, the matter was tried before a jury and verdict was returned in favor of the Williamses. The jury found them to be the lawful owners of the disputed gumball machines and then awarded them the sum of $55,000 for damages arising from the conversion of those machines by the Keeneys.

ANALYSIS

ISSUE ONE—TEXAS RULE OF EVIDENCE 601 ("DEAD MAN'S RULE")

At trial and on appeal, the Keeneys challenged Carolyn's claim of ownership of the gumball machines in question. Through their first issue, the Keeneys contend the trial court erred in overruling their objections to testimony they claim violated Rule 601 of the Texas Rules of Evidence—the "Dead Man's Rule." Specifically, the Keeneys challenged the "purported oral statement or statements of Phil Cole that he conveyed his ownership interest in the Waco/Central Texas machines to Carolyn in 2003 and 2016." The Keeneys contend there was insufficient corroboration of those statements and accordingly, the trial court erred in admitting them over their numerous objections. The Williamses disagree, arguing the record contains sufficient corroboration.

As a general rule, where applicable, Rule 601 prohibits one party from testifying against an heir of a deceased declarant about an oral statement made by the deceased declarant. Musquiz v. Keesee, No. 07-15-00461-CV, 2017 Tex. App. LEXIS 9214, at *7-

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8 (Tex. App.—Amarillo Sep. 28, 2017, pet. denied) (mem. op.) (citing In re Estate of Wright, 482 S.W.3d 650, 655 (Tex. App.—Houston [14th Dist.] 2015, pet. denied)). In other words, as applied to the facts of this case, the "Dead Man's Rule" would prohibit Carolyn from testifying against Misty (one of Phil's heirs) concerning any oral statement Phil may have made concerning the gumball machines in question. An exception, however, exists if the party's testimony about the deceased declarant's statement is corroborated or the opposing party calls the party to testify at the trial about the statement. See TEX. R. EVID. 601(b)(3). Accordingly, the rule does not prohibit testimony concerning statements made by the deceased that are properly corroborated. Musquiz, 2017 Tex. App. LEXIS 9214, at *8 (citing Lewis v. Foster, 621 S.W.2d 400, 404 (Tex. 1981)).

Evidentiary rulings are "committed to the trial court's sound discretion." Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998) (citing City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995)). A trial court abuses its discretion when it rules...